'Sexting': Should Child Pornography Laws Apply?

April 1, 2010

By VICKI MABREY and DAVID PEROZZI via

Two years ago, following a fight with his 16-year-old girlfriend, Phillip Alpert, then 18, did something really stupid.

"It was 3:28 in the morning, I think it was, and I got up and I went to my computer, and I sent a couple of pictures that she had sent to me to her contact list," Alpert told ABC News. "And I went back to sleep."

"I forgot I did it," Alpert said. "I was barely awake when I did it and I didn't even remember and ... then a few days later, my mother called and says, 'Why are there police officers at the house?' I went -- 'Oh no!' And it came back the same way a dream does."

"When I got home, the police were waiting for me," Alpert continued. "They were going through everything that was electronic in my house. My computer, my discs, my MP3 player, just everything. Looking for any other kind of nude photographs, evidence, whatever.

"I was charged with everything. I was charged with lewd and lascivious battery. They charged me with child pornography, they charged me with distributing child pornography, I mean just an incredible amount of charging."

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Alpert faced 72 charges in all.

Note that Alpert didn't take the pictures, but he was in possession of them, he distributed them -- and he had just turned 18. He pleaded guilty... and that began Alpert's nightmare.

"I was forced to register as a sex offender, and that is wherein lies the big problems," Alpert said. "Being a registered sex offender means ... I can't live like near a school or a playground or a park. There's a whole lot of stuff I can't live near -- bus stops, stuff like that ... so basically, I just can't live in a city. It means every six months I have to register as a sex offender."

Sexting: 'Technically It Is Child Pornography'

NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago.

"Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."

"It's a particularly bad kind of sexting, because it really is a malicious embarrassment of another person," Adler continued, referring to Alpert's case. "So while there may be some sort of criminal sanction that's appropriate in this scenario, to me child pornography law is simply inappropriate here. Again, because it's not the case of a pedophile exploiting a child and sexually abusing that child in order to take a picture. It's more of an invasion of privacy."

A recent survey said one in five U.S. teens had participated in sexting. Forty-four percent of teens surveyed said they knew risque messages or pictures get shared, and a whopping 75 percent said they know sexting was a bad idea with "serious negative consequences."

Florida attorney Lawrence Walters took Alpert's case pro bono -- not just for Alpert, he said, but for other teens.